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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
) File No.: EB-11-TP-0102
In the Matter of ) NAL/Acct. No.: 201232700008
St. George Cable, Inc. ) FRN: 0021185574
St. George Island, Florida ) Community Unit ID: FL1401
) PSID: 021652
)
)
Notice of apparent liability for forfeiTure and order
Adopted: September 6, 2012 Released: September 6, 2012
By the Commission:
I. introduction
1. In this Notice of Apparent Liability for Forfeiture and Order (NAL),
we find that St. George Cable, Inc. (St. George), operator of a cable
television system in St. George Island, Florida, apparently willfully
and repeatedly failed to respond to a Bureau order requiring a written
statement of compliance relating to its cable system and apparently
willfully and repeatedly violated Sections 11.35(a), 76.605(a)(12),
76.611(a)(1), 76.613(c), and 76.1801 of the Commission's rules
(Rules). In particular,
St. George failed to (1) install and maintain operational Emergency
Alert System (EAS) equipment, (2) operate its cable system within
required signal leakage limits, (3) immediately suspend operations as
directed by a Bureau order and resume operations only with written
authorization, and (4) register its cable system with the Commission.
We conclude that St. George is apparently liable for a forfeiture in
the amount of two hundred thirty-six thousand five hundred dollars
($236,500). In addition, we direct St. George to submit, no later than
thirty (30) calendar days from the release date of this NAL, a
statement signed under penalty of perjury that it is currently in
compliance with the Commission's EAS and cable signal leakage rules.
II. Background
A. Cable Signal Leakage
2. The Commission has established cable signal leakage rules to control
emissions that could cause cable systems to interfere with aviation
frequencies. The signal leakage levels that exceed the Commission's
defined thresholds are considered harmful interference. Protecting the
aeronautical frequencies from harmful interference is of paramount
importance. To this end, the Commission has determined the tolerable
levels of unwanted signals on the aeronautical frequencies in two
ways. First, pursuant to Section 76.605(a)(12) of the Rules, signal
leakage at any given point in the cable system must not exceed 20
microvolts per meter (uV/m). Second, Section 76.611(a)(1) of the Rules
states that no cable television system shall provide service in the
aeronautical bands unless the system's Cumulative Leakage Index (CLI)
complies with the limits established in the Rules (i.e., a CLI of less
than or equal to 64). The Commission requires that each cable system
annually measure and report its CLI to demonstrate safe levels of
signal leakage.
3. Furthermore, in the event that harmful interference cannot be promptly
eliminated by the application of suitable techniques, Section
76.613(c) of the Rules states that "operation of the offending system
or elements shall immediately be suspended upon notification by the
District Director . . . of the Commission's local field office, and
shall not be resumed until the interference has been eliminated to the
satisfaction of the District Director."
4. On September 7, 2011, agents from the Tampa Office of the Commission's
Enforcement Bureau (Tampa Office) conducted an inspection of the St.
George Island cable system. The agents observed thirty-three distinct
signals on aeronautical frequencies emanating from the St. George
Island cable system, otherwise known as "leaks." Specifically,
twenty-two leaks on the frequency 121.2625 MHz measured over 100 mV/m
at a distance of at least three meters, with the highest leak
measuring 6,627 mV/m. The CLI for the system was calculated to be
86.97, an amount in excess of the CLI limit.
5. On September 9, 2011, the District Director of the Tampa Office issued
an Order to Cease Operations (Cessation Order) to St. George. The
Cessation Order notified St. George that its system had excessive
signal leakage and ordered it to cease all cable operations until the
excessive signal leakage was eliminated. The Cessation Order also
stated that St. George could "request authority to conduct short tests
to evaluate the effectiveness of remedial measures or to calculate the
CLI" and "not resume normal operation on these frequencies without
written approval from [the Tampa Office.]." Agents from the Tampa
Office hand-delivered and explained the Cessation Order to St. George
on September 9, 2011. St. George's President stated to the agents that
his company would adhere to the terms of the Cessation Order. St.
George, however, never contacted the Tampa Office to obtain authority
to conduct testing on the effectiveness of its repair efforts or to
resume normal operations. To date, the Tampa Office has not issued
written approval for St. George to resume normal operations.
6. On September 10, 21, and 22, 2011, agents from the Tampa Office
re-inspected the St. George Island cable system, found the cable
system in operation, and observed numerous leaks above 20 mV/m, many
of which exceeded 100 mV/m at three meters. Specifically, on September
10 and 22, 2011, the CLI for the system was calculated to be 76.87 and
70.89, respectively. On September 23, 2011, agents from the Tampa
Office verbally warned St. George about the system's continued
operation with excessive signal leakage and its failure to comply with
the Cessation Order. The agents again directed St. George to cease
operations immediately until the excessive leakage could be resolved.
7. On October 12, 2011, and again on March 19, 2012, agents from the
Tampa Office inspected the St. George Island cable system, found the
cable system to be in operation, and observed numerous leaks above 100
mV/m. On October 12, 2011, ten leaks measured above 100 mV/m at three
meters and the CLI for the system was calculated to be 65. Although
the system's CLI based on
observed leaks did not exceed the CLI limit on March 19, 2012, five
leaks measured above 200 mV/m at three meters.
A. Emergency Alert System
8. Every analog and digital cable system is required to participate in
the nationwide EAS network. The EAS enables the President and state
and local governments to provide immediate communications and
information to the general public. State and local area plans identify
local primary sources responsible for coordinating carriage of common
emergency messages from the sources such as the National Weather
Service or local emergency management officials. Required monthly and
weekly tests originate from EAS Local or State Primary sources and
must be retransmitted by the participating station. Section 11.35 of
the Rules requires all EAS participants to ensure that EAS encoders,
EAS decoders, and attention signal generating and receiving equipment
are installed so that the monitoring and transmitting functions are
available during the times the systems are in operation. As the
nation's emergency warning system, the EAS is critical to public
safety, and we recognize the vital role that cable systems play in
ensuring its success. The Commission takes seriously any violations of
the Rules implementing the EAS and expects full compliance from its
regulatees.
9. On August 10, 2011, the Commission received a complaint from a
consumer alleging that St. George did not have EAS equipment
installed. On September 9, 2011, agents from the Tampa Office asked to
inspect St. George's EAS equipment and logs. After St. George admitted
that it had not yet installed its purchased EAS equipment, the agents
verbally warned St. George about its continued non-compliance with the
EAS requirements. On September 23, 2011, agents from the Tampa Office
returned to inspect the system's EAS equipment and confirmed that St.
George still had not installed its purchased EAS equipment.
A. Cable System Registration
10. Section 76.1801 of the Rules requires cable operators to submit a
registration statement with the Commission on FCC Form 322. "A system
community unit shall be authorized to commence operation only after
filing with the Commission [certain] information on FCC Form 322."
11. On September 9, 2011, after St. George admitted that it had not
registered its system with the Commission on an FCC Form 322, and
consequently had never been assigned a community unit identification
(CUID) or physical system identification (PSID) number, agents from
the Tampa Office verbally warned St. George about its need to do so.
On September 23, 2011, the agents reiterated this warning after St.
George again admitted that it had not yet filed the form. According to
Commission records, St. George submitted a Form 322 on December 16,
2011.
A. Prior NAL and Certification Requirement
12. Prior NAL. St. George has a prior history of non-compliance with the
cable signal leakage, EAS, and cable system registration requirements
at issue here. On September 30, 2011, the Bureau issued a Notice of
Apparent Liability for Forfeiture and Order (St. George Cable First
NAL) to St. George for its apparent willful and repeated violations of
Sections 11.35(a), 76.605(a)(12), 76.611(a), and 76.1801 of the Rules.
Specifically, on January 11 and 13, 2011, agents from the Tampa Office
observed fourteen leaks that exceeded 100 uV/m at 3 meters in the
system. On both dates, the CLI for the St. George Island cable system
was calculated to be 64.88, an amount in excess of the acceptable
limit. In addition, as of January 14, 2011, agents from the Tampa
Office observed that St. George had never installed EAS equipment for
its system. Further, agents from the Tampa Office confirmed that, as
of September 23, 2011, St. George had never registered its system on a
Form 322. St. George did not file a response to the St. George Cable
First NAL and a Forfeiture Order affirming the proposed $25,000
forfeiture was subsequently issued. St. George also did not submit the
required certification statement imposed by the St. George Cable First
NAL and, as discussed infra, we address its failure to respond to a
Bureau order in this proceeding.
13. Certification Requirement. In the St. George Cable First NAL, the
Bureau ordered St. George to "submit a statement signed under penalty
of perjury by an officer or director of St. George stating that: (1)
it has installed operational EAS equipment for the St. George Island
system in compliance with section 11.35 of the Rules; and (2) it has
submitted a Form 322 for the St. George Island system in compliance
with section 76.1801 of the Rules" (Certification of Compliance). St.
George was required to submit the Certification of Compliance to the
Bureau no later than October 30, 2011. St. George still has not
responded to the Bureau's order to submit its Certification of
Compliance.
III. DISCUSSION
14. Section 503(b) of the Communications Act of 1934, as amended (Act),
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation, or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. Section
312(f)(1) of the Act defines "willful" as the "conscious and
deliberate commission or omission of [any] act, irrespective of any
intent to violate" the law. The legislative history to Section
312(f)(1) of the Act clarifies that this definition of willful applies
to both Sections 312 and 503(b) of the Act, and the Commission has so
interpreted the term in the Section 503(b) context. The Commission may
also assess a forfeiture for violations that are merely repeated, and
not willful. The term "repeated" means the commission or omission of
such act more than once or for more than one day.
A. Cable Signal Leakage Violations
1. Failure to Comply with Cable Signal Leakage Limits
15. As discussed above, St. George failed to comply with the Commission's
cable signal leakage limits and its system exceeded the CLI limit on
at least four occasions. On September 7, 2011, the St. George system
CLI was calculated to be 86.97; on September 10, 2011, the system CLI
was calculated to be 76.87; on September 22, 2011, the system CLI was
calculated to be 70.89; and on October 12, 2011, the system CLI was
calculated to be 65. On March 19, 2012, while the system CLI did not
exceed 64, the agents observed the system in operation with five leaks
measured above 200 mV/m at three meters. Thus, based on the evidence
before us, we find that St. George apparently willfully and repeatedly
violated Sections 76.605(a)(12) and 76.611(a)(1) of the Rules by
operating the St. George Island cable system with excessive signal
leakage.
1. Failure to Suspend Operations upon Notification by Bureau and
Failure to Obtain Bureau Approval Prior to Resuming Normal
Operations
16. After having observed the St. George Island cable system's excessive
cable signal leakage, on September 9, 2011, agents from the Tampa
Office hand-delivered and orally explained the Cessation Order to St.
George. The Cessation Order (1) notified St. George that its system's
leaks exceeded the CLI limit, (2) directed St. George to cease cable
system operations immediately, and (3) informed St. George that it
must not resume operations without written approval from the Tampa
Office and until the harmful interference caused by the excessive
leaks was eliminated. Despite acknowledging receipt of and stating to
the Tampa Office agents that it would comply with the Cessation Order,
St. George continued to operate its cable system without written
approval from the Tampa Office and with signal leakage in excess of
the CLI limit on September 10 and 22, 2011. On September 23, 2011,
agents from the Tampa Office warned St. George that it was in
violation of the Cessation Order and that it must cease operations
immediately and not resume operations until its system was in
compliance with the CLI limits. However, on October 12, 2011, agents
from the Tampa Office again observed the St. George Island system in
operation without written approval from the Tampa Office and with
signal leakage in excess of the CLI limit. Thus, based on the evidence
before us, we find St. George apparently willfully and repeatedly
violated Section 76.613(c) of the Rules by failing to cease operations
until the interference had been resolved, as directed by the District
Director of the Tampa Office, and operating its system without the
requisite approval by the District Director.
A. Failure to Install and Maintain Operational Emergency Alert System
Equipment
17. As described above, St. George is an EAS participant and is required
to install and maintain operational EAS equipment. On September 9 and
23, 2011, agents from the Tampa Office observed that St. George did
not have any EAS equipment installed for the St. George Island cable
system when the system was in operation. St. George also admitted that
although EAS equipment was purchased on January 24, 2011, it was not
installed or operational as of September 23, 2011. Thus, based on the
evidence before us, we find that St. George apparently willfully and
repeatedly violated Section 11.35 of the Rules by failing to install
and maintain operational EAS equipment for its cable system.
A. Failure to File Registration Statement and Failure to Respond to
Bureau Order to Submit Certification of Compliance
18. In the St. George Cable First NAL, the Bureau ordered St. George to
submit a Certification of Compliance stating that it had installed
operational EAS equipment and submitted a Form 322 as required by
Section 76.1801 of the Rules, no later than October 30, 2011.
19. St. George did not file the Form 322 with the Commission by October
30, 2011. In fact, St. George failed to submit the Form 322 until
December 16, 2011. Thus, based on the evidence before us, we find that
St. George apparently willfully and repeatedly violated Section
76.1801 of the Rules by failing to submit a registration statement to
the Commission on FCC Form 322 before it commenced operations. St.
George still has not submitted the Certification of Compliance.
Accordingly, we also find that St. George apparently willfully and
repeatedly violated the terms of a Bureau order.
A. Proposed Forfeiture Amount
20. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount for EAS equipment not
installed or operational is $8,000; for violation of rules relating to
distress and safety frequencies is $8,000; for failing to respond to a
Commission inquiry is $4,000; and for failing to file required forms
is $3,000. Although there is no base forfeiture for continued
operation in violation of a cessation order, "[f]ailure to discontinue
operations when instructed to do so by Commission staff, upon
demonstration of a hazard to air navigation, is a serious offense and
demands the maximum penalty." Commission precedent has established
that cable signal leakage in the aeronautical bands constitutes
harmful interference to distress and safety frequencies. Accordingly,
we conclude the forfeiture in this case for failing to cease
operations when instructed to do so should be the statutory maximum,
which is $37,500. In assessing the monetary forfeiture amount, we must
also take into account the statutory factors set forth in Section
503(b)(2)(E) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, any history of prior offenses,
ability to pay, and other such matters as justice may require. St.
George has a history of failing to comply with the rules at issue
today, which demonstrates a complete disregard for the Commission's
authority and requirements, warranting significant upward adjustments
of the base forfeiture amounts.
21. Cable Signal Leakage. On September 7, 2011, St. George operated its
cable system with signal leakage in excess of the CLI limit. On
September 9, 2011, and again on September 23, 2011, St. George was
notified that its system's cable signal leakage exceeded the CLI limit
and posed a safety hazard to air navigation traffic. In the Cessation
Order issued on September 9, 2011, the District Director of the Tampa
Office ordered St. George to cease operations until the harmful
interference was resolved and to obtain written authority prior to
resuming normal operations. Agents from the Tampa Office reiterated
the contents of the Cessation Order to St. George on September 23,
2011. Nevertheless, St. George continued to operate its cable system
without authorization and with signal leakage in excess of the CLI
limit on September 10, September 22, and October 12, 2011. Moreover,
the Bureau had previously found that St. George operated its cable
system with signal leakage in excess of the CLI limit on January 11
and 13, 2011 and imposed an $8,000 forfeiture for the violations. We
conclude St. George's actions were egregious-given the potential
public safety hazard, its blatant disregard for Commission authority,
and a demonstrated pattern of failing to maintain its cable
system-warranting significant upward adjustments to the base
forfeiture. Section 1.80(b)(1) of the Rules limits the amount of
forfeiture the Commission may assess against a cable television
operator to $37,500 for each violation. Given the totality of the
circumstances, we find St. George apparently liable for a total
forfeiture equivalent to the maximum for four violations, or $150,000,
for operating its cable system with excessive cable signal leakage.
Further, for its apparent willful and repeated failure to comply with
the Bureau's Cessation Order, we find that a total forfeiture in the
amount of $37,500 is warranted.
22. EAS. As of September 23, 2011, St. George's cable system was operating
without installed EAS equipment. Moreover, the Bureau had previously
concluded in the St. George Cable First NAL that, as of January 14,
2011, St. George had never installed EAS equipment for its cable
system, and imposed a $12,500 forfeiture. The proposed forfeiture
included an upward adjustment of $4,500, reflecting St. George's
failure to install EAS since 2002, when it was first required by the
Commission to do so. St. George's history of non-compliance and
continued failure to install operational EAS equipment, despite being
repeatedly warned to do so, warrants the statutory maximum forfeiture
for the EAS violation. Given the totality of the circumstances, we
find St. George apparently liable for a total forfeiture of $37,500.
23. Registration. The Bureau directed St. George to submit a Form 322 on
September 9 and 23, 2011, and in the St. George Cable First NAL. St.
George, however, did not submit the Form 322 until December 16, 2011,
almost three months after its third warning and more than a month and
a half after it was required to certify to the Bureau that it had done
so. The Bureau concluded in the St. George Cable First NAL that St.
George failed to file a Form 322 for more than a year after being
instructed to do so and imposed a $4,500 total forfeiture, with a
$1,500 upward adjustment, due in part to the duration of the
violation. St. George's failure to register its cable system, despite
multiple warnings and an order directing it to certify compliance on
or before October 30, 2011, demonstrates a blatant disregard of the
Commission's authority, warranting an upward adjustment in the amount
of $3,000 to the base forfeiture amount associated with a failure to
file the required form before December 16, 2011, for a total
forfeiture of $6,000.
24. Failure to Submit Certification of Compliance. In the St. George
Cable First NAL, the Bureau directed St. George to submit a written
Certification of Compliance with the EAS and Form 322 requirements on
or before October 30, 2011. It failed to do so. Because St. George's
failure to respond regarding its EAS compliance "touch[es] on an area
of critical importance-the integrity of the EAS system," we conclude
that an upward adjustment of $1,500 to the base forfeiture of $4,000
is warranted, resulting in a total forfeiture of $5,500.
25. Applying the Forfeiture Policy Statement, Section 1.80 of the Rules,
and the statutory factors to the instant case, we conclude that St.
George is apparently liable for a total forfeiture in the amount of
$236,500 consisting of the following elements: $150,000 for operating
its system with excessive cable signal leakage; $37,500 for failing to
cease operations when ordered and operating without authority; $37,500
for failing to install and maintain operational EAS equipment; $6,000
for failing to file the required registration form; and $5,500 for
failing to respond to a Bureau order to submit the Certification of
Compliance. As discussed above, the forfeitures include upward
adjustments based on St. George's prior history of non-compliance with
the rules at issue, which include those designed to protect life and
safety. The upward adjustments are also based on the seriousness of
St. George's repeated failure to obey a Commission order directing it
to cease operations to avoid interference with aeronautical
frequencies, as well as the seriousness of its violation of a Bureau
order directing it to certify that it was in compliance with the
Commission's EAS requirements.
A. Reporting Requirement and Conclusion
26. We also direct St. George to submit a written statement, pursuant to
Section 1.16 of the Rules, signed under penalty of perjury that St.
George has (1) installed operational EAS equipment for the St. George
Island system in compliance with Section 11.35 of the Rules, (2)
repaired all signal leaks in excess of 20 uV/m at three meters at any
point in its cable system, (3) repaired all system leaks, such that
its system is in compliance with the CLI limit, and (4) come into
compliance with all other cable signal leakage rules, including, but
not limited to, (i) monitoring its system to detect leaks, (ii)
maintaining a log of all leaks, and (iii) conducting annual signal
leakage testing when required and reporting the results of such tests
to the Commission when due. This statement must be provided to the
Tampa Office at the address listed in paragraph 30 within thirty (30)
calendar days after the release date of this NAL.
27. Finally, we remind St. George that it remains subject to the terms of
the Cessation Order and may not resume operations until it obtains
written approval from the District Director of the Tampa Office. In
addition, before resuming operations, St. George must demonstrate that
its system complies with the Commission's rules regarding the CLI
using the procedures described in Section 76.611 of the Rules.
Continued violation of the Cessation Order will be viewed as a
particularly egregious violation and may subject St. George to further
enforcement action, including more severe penalties.
IV. ORDERING CLAUSES
28. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Section 1.80 of the
Commission's rules, St. George Cable, Inc. is hereby NOTIFIED of this
APPARENT LIABILITY FOR A FORFEITURE in the amount of two hundred
thirty-six thousand five hundred dollars ($236,500) for willfully and
repeatedly violating an Enforcement Bureau directive to submit a
certification and violations of Sections 11.35(a), 76.605(a)(12),
76.611(a)(1), 76.613(c), and 76.1801 of the Commission's rules.
29. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's rules, within thirty (30) calendar days of the release
date of this Notice of Apparent Liability for Forfeiture and Order,
St. George Cable, Inc. SHALL PAY the full amount of the proposed
forfeiture or SHALL FILE a written statement seeking reduction or
cancellation of the proposed forfeiture.
30. IT IS FURTHER ORDERED that St. George Cable, Inc. SHALL SUBMIT a
statement as described in paragraph 26 to the Tampa Office within
thirty (30) calendar days of the release date of this Notice of
Apparent Liability for Forfeiture and Order. The statement must be
mailed to Federal Communications Commission, Enforcement Bureau, South
Central Region, Tampa Office, 4010 W. Boy Scout Blvd., Suite 425,
Tampa, Florida 33607. St. George Cable, Inc. shall also e-mail the
written statement to SCR-Response@fcc.gov.
31. Payment of the forfeiture must be made by check or similar instrument,
wire transfer, or credit card, and must include the NAL/Account number
and FRN referenced above. St. George Cable, Inc. shall send electronic
notification of payment to SCR-Response@fcc.gov on the date said
payment is made. Regardless of the form of payment, a completed FCC
Form 159 (Remittance Advice) must be submitted. When completing the
FCC Form 159, enter the Account Number in block number 23A (call
sign/other ID) and enter the letters "FORF" in block number 24A
(payment type code). Below are additional instructions you should
follow based on the form of payment you select:
* Payment by check or money order must be made payable to the order of
the Federal Communications Commission. Such payments (along with the
completed Form 159) must be mailed to Federal Communications
Commission, P.O. Box 979088, St. Louis, MO 63197-9000, or sent
via overnight mail to U.S. Bank - Government Lockbox #979088,
SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO 63101.
* Payment by wire transfer must be made to ABA Number 021030004,
receiving bank TREAS/NYC, and Account Number 27000001. To complete
the wire transfer and ensure appropriate crediting of the wired funds,
a completed Form 159 must be faxed to U.S. Bank at (314) 418-4232 on
the same business day the wire transfer is initiated.
* Payment by credit card must be made by providing the required credit
card information on FCC Form 159 and signing and dating the Form 159
to authorize the credit card payment. The completed Form 159 must then
be mailed to Federal Communications Commission, P.O. Box 979088, St.
Louis, MO 63197-9000, or sent via overnight mail to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101.
32. Any request for full payment under an installment plan should be sent
to: Chief Financial Officer-Financial Operations, Federal
Communications Commission, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions regarding payment
procedures, please contact the Financial Operations Group Help Desk by
phone, 1-877-480-3201, or by e-mail, ARINQUIRIES@fcc.gov.
33. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.16 and 1.80(f)(3) of the Rules. The written statement must
be mailed to Federal Communications Commission, Enforcement Bureau,
South Central Region, Tampa Office, 4010 W. Boy Scout Blvd., Suite
425, Tampa, Florida 33607 and include the NAL/Acct. No. referenced in
the caption. St. George Cable, Inc. also shall email the written
response to SCR-Response@fcc.gov.
34. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices (GAAP); or (3) some other reliable and objective
documentation that accurately reflects the petitioner's current
financial status. Any claim of inability to pay must specifically
identify the basis for the claim by reference to the financial
documentation submitted.
35. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture and Order shall be sent by both Certified Mail, Return
Receipt Requested, and First Class Mail, to St. George Cable, Inc. at
P.O Box 1090, St. George Island, Florida 32328, and to its counsel,
Lewis H. Goldman, P.C., 45 Dudley Court, Bethesda, MD 20814.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
See 47 C.F.R. S:S: 11.35(a), 76.605(a)(12), 76.611(a)(1), 76.613(c),
76.1801.
See Amendment of Part 76 of the Commission's Rules to Add Frequency
Channelling Requirements and Restrictions and to Require Monitoring for
Signal Leakage from Cable Television Systems, Memorandum Opinion and
Order, Docket No. 21006, 101 FCC 2d 117, para. 14 (1985).
The "aeronautical bands" are 108-137 MHz and 225-400 MHz. These
frequencies encompass both radio navigation frequencies, 108-118 MHZ and
328.6-335.4 MHz, and communications frequencies, 118-137 MHz,
225-328.6 MHz and 335.4-400 MHz. The international distress and calling
frequencies, 121.5 MHz, 156.8 MHz, and 243 MHz, receive heightened
protection. See 47 C.F.R. S: 76.616. These frequencies are critical for
Search and Rescue Operations, including use by Emergency Locator
Transmitters on planes and Emergency Position Indicating Radio Beacons on
boats. See generally 47 C.F.R. Part 80, Subpart V; 47 C.F.R. S:S:
87.193-87.199. Harmful interference includes any interference that
"endangers the functioning of a radio navigation service or of other
safety services." See 47 C.F.R. S:S: 2.1, 76.613(a).
See 47 C.F.R. S: 76.605(a)(12). This limit applies to measurements at
three meters and for leakage on frequencies over 54 MHz up to and
including 216 MHz.
See 47 C.F.R. S: 76.611(a)(1).
Id.
47 C.F.R. S: 76.613(c).
Using the formula provided in Section 76.611(a)(1) of the Rules, the
calculated CLI must be equal to or less than 64. See 47 C.F.R. S:
76.611(a)(1).
St. George Cable, Inc., Order to Cease Operations (Enf. Bur. Sept. 9,
2011) (on file in EB-11-TP-0065).
Id.
Id.
See infra para. 26 (requiring certification of compliance).
47 C.F.R. S:S: 11.11, 11.41.
47 C.F.R. S:S: 11.1, 11.21.
47 C.F.R. S: 11.18. State EAS plans contain guidelines that must be
followed by broadcast and cable personnel, emergency officials and
National Weather Service personnel to activate the EAS for state and local
emergency alerts. The state plans include the EAS header codes and
messages to be transmitted by the primary state, local, and relay EAS
sources. 47 C.F.R. S: 11.21.
47 C.F.R. S: 11.35.
See Complaint No. 11-C00323431-1, complaint from consumer memorialized on
Form 2000D on August 10, 2011 (on file in EB-11-TP-0065).
The agents found no record of any waivers of EAS requirements being
granted to St. George. On September 30, 2011, St. George faxed a copy of
an invoice for EAS equipment to the Tampa Office. The invoice showed that
St. George had ordered its EAS equipment on January 24, 2011. The cover
memo accompanying the invoice stated that St. George did not know the
exact date the EAS equipment had been received and that shipments normally
arrive within 12-15 days of order placement. The cover memo did not have
any statements regarding St. George's compliance with EAS requirements.
47 C.F.R. S: 76.1801.
Id.
See St. George Cable, Inc., Notice of Apparent Liability for Forfeiture
and Order, 26 FCC Rcd 13520, 13520-13521 (Enf. Bur. 2011).
Id.
On February 28, 2011, St. George informed the Tampa Office that it had
repaired all of the leaks found in the January inspection and brought the
system's CLI into compliance. See St. George Cable First NAL, 26 FCC Rcd
at 13521.
St. George Cable First NAL, 26 FCC Rcd at 13522.
Id., 26 FCC Rcd at 13523.
St. George Cable, Inc., Forfeiture Order, 26 FCC Rcd 16027 (Enf. Bur.
2011) (Forfeiture Order) (forfeiture not paid).
St. George Cable First NAL, 26 FCC Rcd at 13524.
Id.
47 U.S.C. S: 503(b).
47 U.S.C. S: 312(f)(1).
H.R. Rep. No. 97-765, 97th Cong. 2d Sess. 51 (1982) ("This provision
[inserted in Section 312] defines the terms `willful' and `repeated' for
purposes of section 312, and for any other relevant section of the Act
(e.g., Section 503) . . . . As defined[,] . . . `willful' means that the
licensee knew that he was doing the act in question, regardless of whether
there was an intent to violate the law. `Repeated' means more than once,
or where the act is continuous, for more than one day. Whether an act is
considered to be `continuous' would depend upon the circumstances in each
case. The definitions are intended primarily to clarify the language in
Sections 312 and 503, and are consistent with the Commission's application
of those terms . . . .").
See, e.g., Application for Review of S. Cal. Broad. Co., Memorandum
Opinion and Order, 6 FCC Rcd 4387, 4388 (1991), recons. denied, 7 FCC Rcd
3454 (1992).
See, e.g., Callais Cablevision, Inc., Notice of Apparent Liability for
Monetary Forfeiture, 16 FCC Rcd 1359, 1362, para. 10 (2001) (Callais
Cablevision, Inc. NAL) (proposing a forfeiture for, inter alia, a cable
television operator's repeated signal leakage).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term `repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day." See Callais Cablevision, Inc. NAL, 16 FCC Rcd at
1362.
See supra note 9.
See 47 C.F.R. S: 11.35.
47 C.F.R. S: 76.1801.
St. George Cable First NAL, 26 FCC Rcd at 13524.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) (Forfeiture Policy Statement), recons. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S: 1.80.
See, e.g. Charter Commc'ns VI, LLC, Notice of Apparent Liability for
Forfeiture, 16 FCC Rcd 8485 (Enf. Bur. 2001) (Charter Commc'ns NAL).
See 47 C.F.R. S:S: 2.1, 76.613(a).
47 C.F.R. S: 1.80(b)(1).
47 U.S.C. S: 503(b)(2)(E).
See St. George Cable First NAL, 26 FCC Rcd at 13520-13521. On January 20,
2011, the Tampa Office issued an order directing St. George to cease
operations on aeronautical band frequencies. See Letter from Ralph Barlow,
District Director, Tampa Office, to Charles Sumner, Owner of St. George
Cable, Inc. (rel. Jan. 20, 2011) (on file in EB-10-TP-0065). On February
28, 2011, St. George informed the Tampa Office that it had repaired all of
the leaks found in the January inspection and brought the system's CLI
into compliance.
We are not using the issuance of the prior NAL to St. George's prejudice
as prohibited by Section 504(c) of the Act, 47 U.S.C. S: 504(c), but
rather are appropriately considering "the underlying facts of a prior
violation that shows a pattern of non-complaint behavior." See 47 U.S.C.
S: 504(c) (issuance of NAL or forfeiture may not be used in any other
proceeding "to the prejudice of the person to whom such notice was issued,
unless (i) the forfeiture has been paid, or (ii) a court of competent
jurisdiction has ordered payment of such forfeiture, and such order has
become final"); Forfeiture Policy Statement, 12 FCC Rcd at 17103, para. 34
("[U]sing the underlying facts of a prior violation that shows a pattern
of non-compliant behavior against a licensee in a subsequent renewal,
forfeiture, transfer, or other proceeding does not cause the prejudice
that Congress sought to avoid in Section 504(c)."); see also Clean
Credit, Inc., Notice of Apparent Liability for Forfeiture, 25 FCC Rcd
12881 (2010) at para. 7 (using the underlying facts from a prior NAL to
support an upward adjustment in the proposed forfeiture amount).
47 C.F.R. S: 1.80(b)(1).
See Callais Cablevision Inc. NAL, 16 FCC Rcd 1359 (imposing proposed
forfeiture equivalent to twice the statutory maximum for exceeding CLI on
two days and causing actual interference to the Federal Aviation
Administration (FAA)); MediaOne of Metro. Detroit, Notice of Apparent
Liability, 15 FCC Rcd 13937 (2000) (proposing a forfeiture equivalent to
twice the statutory maximum for exceeding CLI on one day, causing actual
interference to the U.S. Air Force, and exceeding cable signal leakage
limits on one day after being ordered to cease operations). Cf. Charter
Commc'ns NAL, 16 FCC Rcd at 8487-8488 ("considering the size of the
system," assessing $20,000 proposed forfeiture to cable operator serving
approximately 1,000 subscribers who ceased operations one day after being
ordered to do so and exceeded CLI for a total of two days). Although
similar to these cases, St. George's actions can be distinguished from
them and must be evaluated on an individual basis. While St. George
apparently did not cause actual interference to the FAA or the military
and operates a system of similar size to the system at issue in the
Charter Commc'ns NAL, St. George exceeded the CLI limit on at least four
days, operated without authorization on at least three days spanning a
period of time of more than a month, exceeded cable signal leakage limits
multiple times on each of those days, and has a prior history of cable
signal leakage violations.
Cf. A Radio Co., Inc., Notice of Apparent Liability for Forfeiture, 25 FCC
Rcd 6561 (Enf. Bur. 2011) (imposing $25,000 forfeiture for failing to
comply with terms of Bureau-issued Consent Decree).
See St. George Cable First NAL, 26 FCC Rcd at 13524.
See 47 C.F.R. S: 11.11 (requiring analog cable systems serving fewer than
5,000 subscribers from a headend to comply with EAS requirements as of
October 1, 2002).
See St. George Cable First NAL, 26 FCC Rcd at 13524.
Id.
See, e.g., Opp Educ. Broad. Found., Notice of Apparent Liability for
Forfeiture and Order, 24 FCC Rcd 11237, 11241, para. 12 (Enf. Bur. 2009)
(imposing a $1,500 upward adjustment to the base of $4,000 for each
failure to respond to two Bureau inquiries regarding EAS compliance,
resulting in a total forfeiture of $11,000).
47 C.F.R. S: 1.16.
See 47 C.F.R. S: 76.614.
See 47 C.F.R. S: 76.1706.
See 47 C.F.R. S:S: 76.611, 76.1803 (requiring multi-channel video
programming distributors to submit the results of annual signal leakage
testing to the Commission on an FCC Form 320).
47 C.F.R. S: 76.611.
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 1.80, 11.35(a), 76.605(a)(12),
76.611(a)(1), 76.613(c), 76.1801.
An FCC Form 159 and detailed instructions for completing the form may be
obtained at http://www.fcc.gov/Forms/Form159/159.pdf.
See 47 C.F.R. S: 1.1914.
47 C.F.R. S:S: 1.16, 1.80(f)(3).
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Federal Communications Commission FCC 12-99
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Federal Communications Commission FCC 12-99